The National Labor Relations Board continued its busy summer over the past two weeks. First, the Board issued a decision reaffirming the importance it places on an employee’s Weingarten rights, even if they impede an employer’s investigation of an employee allegedly under the influence of drugs or alcohol. The Board also ratified all of the administrative and personnel actions it took between January 4, 2012 and August 5, 2013, the period during which recess appointees took actions invalidated by the Supreme Court’s ruling in Noel Canning

First, in Ralph’s Grocery Company, the Board affirmed an ALJ’s ruling in favor of an employee discharged due to his apparent intoxication, and refusal to submit to a drug test. Coworkers observed Vittorio Razi, an employee in the produce department, displaying unusual behavior. He slurred his words, could not remember his computer login information, had difficulty kneeling to tie his shoes, and seemed nervous and agitated. Based on these observations, the Store Director concluded that Razi was under the influence of a substance and ordered him to submit to a drug and alcohol test.  Razi requested a union representative. The Store Director told Razi that he did not have the right to union representation, but allowed him to try to reach a union official anyway. Razi could not reach either his representative or an alternate steward. When Razi refused to submit to the test despite the Store Director’s warnings that it would result in his termination, the Company suspended him immediately and terminated him the next day.

The store argued it did not have to postpone its investigation indefinitely simply because Razi could not contact his union representative. As the dissenting Board member noted, previous NLRB decisions have recognized an employer’s legitimate interest in proceeding with an investigation without delay, especially given the time-sensitive nature of drug and alcohol tests.  Ralph’s also argued Razi was insubordinate, and pointed out the store’s long-standing policy that refusal to submit to a drug test constituted an automatic positive test result.

Under the Board’s 1975 Weingarten decision, employees have a right to request their union representative be present at investigatory interviews and meetings. The Company originally prevailed at arbitration when the arbitrator found that Razi’s Weingarten rights did not apply to a “for cause” drug and alcohol testing directive since it was not an “investigatory interview” and because it already had made the decision to send Razi for a drug and alcohol test based on the Store Director’s observations.  Both the Board and ALJ disagreed, finding that the drug and alcohol test triggered Razi’s Weingarten rights.  Additionally, the Board highlighted that despite the numerous observations made by coworkers, Ralph’s Grocery apparently based its termination solely on Razi’s refusal to take the test until his union representative arrived.  Therefore, the Board rejected Ralph’s argument that Razi’s refusal constituted insubordination or the equivalent of a positive test result, finding instead that it had penalized him “for refusing to waive his right to representation” under Weingarten. The decision underscores that while employers may institute policies holding that a refusal to take a drug test constitutes a positive test, they should not ignore employees’ attempts to exercise their union rights. Supervisors and managers should also record observed behavior indicating intoxication whenever possible as a safeguard against employees’ unfair labor practice claims.

In addition to its Ralph’s decision, the Board also ratified all administrative, personnel and procurement actions taken while President Obama’s recently invalidated recess appointments served on the Board. As we reported in June, the Supreme Court unanimously ruled in Noel Canning v. NLRB that President Obama’s appointment of three Board members violated the constitution. The decision left many NLRB decisions and administrative actions in doubt, as the Board was without a quorum between January 4, 2012 and August 5, 2013. On August 4, the Board announced it had retroactively ratified decisions taken by the Noel Canning Board, such as the selection of Regional Directors, Administrative Law Judges, and the restructuring of regional offices. This action does not impact the hundreds of decisions issued by the Noel Canning Board called into question by the Supreme Court’s ruling.

The decision in Ralph’s and the Board’s administrative actions once again demonstrate the Board’s aggressive and expansive enforcement of the National Labor Relations Act, and its determination to remove any questions about the validity of actions undertaken during the period it acted without a lawful quorum.